We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

Not black enough: $11,000 damages for discrimination based on colour

A former employee of the Nova Scotia Black Educators Association (“BEA”) was awarded $11,000 in damages, plus pre-judgement interest, after a Board of Inquiry (“Board”) determined she had been discriminated against because of the colour of her skin.

The BEA’s mandate is to assist learners from the black community to benefit from Nova Scotia’s education system. Rachel Brothers was a self-identified bi-racial person, who was hired by the BEA in 2006 to oversee its work in one of its regions.

Less than a year later, her employment was terminated.

BEA said that irregularities in financial reporting was the reason for termination.

Ms. Brothers alleged her employment was terminated because of her skin colour, and that throughout her employment she had been subjected to comments from other employees to the effect that she was not black enough to represent the organization.

What did the Board say?

The Board determined that Ms. Brothers had been subjected to several “colourist” comments throughout her employment, including:

she “should go work for whitey” because she was “light skinned”; and

she was too light skinned to “officially represent them” because she “wasn’t black enough”.

The Board said that one employee in particular actively attempted to undermine Ms. Brothers’ employment by making such colourist comments, and taking matters that should have gone to Ms. Brothers directly to BEA’s Head Office.

Although Ms. Brothers did not make a formal complaint, her superiors were present at meetings where such comments were made. The Board concluded that Ms. Brothers’ direct supervisor and the BEA Head Office chose to ignore the behavior, rather than stabilize operations in Ms. Brothers’ region by terminating her employment.

In addition, the Board found that BEA’s head office ignored a formal complaint by Ms. Brothers’ administrative assistant, a bi-racial person, after she had been asked by another employee “are you even black?”.

Finally, the Board suggested that Ms. Brothers was not given a fair chance to review or explain the alleged financial irregularities, insufficient evidence about these irregularities had been led, and, Ms. Brothers had offered to pay back any amounts in dispute, an offer the BEA accepted.

The Board concluded the decision to terminate Ms. Brothers’ employment was made in part to solve the tensions caused by the perceptions of other employees about her skin colour, and therefore was a discriminatory decision because it was influenced by Ms. Brothers’ skin colour.

What does this mean to employers?

Discrimination based on colour is possible without discrimination based on race. Although Ms. Brothers’ claim for discrimination based on colour, race, and age, the Board found only discrimination based on colour. This is one of the few Human Rights cases dealing exclusively with discrimination based on skin colour.

Members of historically disadvantaged groups and organizations mandated to assist historically disadvantaged groups can be the perpetrators of discrimination. This complaint involved self-identified black employees of an organization mandated to assist the black community making discriminatory comments about the skin colour of self-identified bi-racial persons. The decision affirms that all persons and organizations, regardless of history or mandate, can be found to have acted in a discriminatory manor under the Human Rights Act.

The impact of behaviour on the recipient is the Board’s primary concern. BEA witnesses testified that saying a person’s skin colour is closer to white is not an insult given the perceived advantages lighter skinned people have, and that inquiring whether someone was black was, given the BEA’s mandate, an appropriate inquiry. The Board noted that it was not the intention of the person making such statements that was under scrutiny, but how the statements and behaviour affected others. The Board noted that a bi-racial person is subject to a double differentiation, first on the basis of skin colour, and second on what the colour supposedly says about their racial and or cultural purity, such that comments and negative attitudes about skin colour can have a significant impact on bi-racial persons.

The behaviour of employees can result in employer liability. It is well established that an employer can be liable for the discriminatory actions of employees, and this case serves as a reminder. Although it was determined that members of the Board of Directors of the BEA did not know about the comments made to Ms. Brothers because the Head Office had never advised them of the events, the employer was liable for discrimination due to the actions of its employees.

Human Rights Complaints must be taken seriously by employers. Throughout the decision, the Board noted that a lack of evidence by the BEA to substantiate their arguments, as well as the tone and content of the testimony of their witnesses, harmed its case. The monetary penalty in this case, and the publicity the decision has attracted, is a cautionary tale for employers to treat Human Rights cases seriously.

Compare jurisdictions: Employment: Canada

"I am a regular reader of Lexology, as are a few of my colleagues. I find the email newsfeed useful and of good quality, and in some cases directly on point with issues of concern to the company. It is important to stay current with legal developments, and the articles are a great aid toward this goal. The ability to access the articles without cost is critical and I hope Lexology continues with the good work."